The cellular phone and smart phone have almost become more necessary to the daily lives of many Americans than their car. We bank with them, send work emails on them, talk with family members and friends across the country on them, store pictures of our most cherished moments on them, and some Americans store evidence of criminal acts on them. If that last one made you do a double take, don't be surprised by it. Police officers increasingly find evidence of crimes on Facebook posts and in text messages. Therefore, they are highly interested in what they might find on a person's phone when they arrest a person.

For a long time, the information stored on a person's phone did not receive much in the way of constitutional protections. Cell phones were given the same level of protection as a person's briefcase or wallet, and police officers could search them without a search warrant when they arrested a person. Riley v. California, a case decide by the United States Supreme Court in 2014, changed all that, however. After Riley, police officers need to go to a judge and apply for a warrant to search the phone, meaning they must show probable cause to believe that they will find evidence of a crime in the information on the phone. Thanks to Riley, the days of police officers being able to fish through a person's phone, hoping to find evidence of…something, simply because they had arrested a person are over.

Riley has raised a host of new legal questions, however, and courts are now forced to deal with them. One of those issues, namely whether a person's Fifth Amendment right against self-incrimination is violated when a court orders a person to give police the password to their cell phone one the police have a search warrant, was recently dealt with by Minnesota courts in State v. Diamond, and will be dealt with again in the near future.

In Diamond, a person suspected of numerous crimes had been arrested and his cell phone was seized by police officers. A detective went to a judge and received a warrant to search the cell phone, but could not get around the fingerprint scan needed to unlock the phone. The State asked the court to compel the defendant to provide a fingerprint to unlock the phone. The defendant eventually complied with the court's Order and unlocked the phone for the police to search. The issue addressed by the court of appeals, in affirming the district court's decision to compel the defendant to unlock his phone, was whether or not using a person's own fingerprint to unlock a phone was testimonial in the situation at hand. If using a fingerprint to unlock a phone was testimonial in the situation at hand, then the defendant's Fifth Amendment rights had been violated. If it was not testimonial, then there was no violation. The court of appeals decided compelling the defendant to provide his fingerprint was not testimonial, so the defendant's Fifth Amendment rights had not been violated.

As a side note, the court of appeals did note that there is a difference between compelling a defendant to use their fingerprint to unlock a phone and compelling them to give up an actual password to unlock the phone. Forcing a defendant to give up a password forces them to give information that only they know, and is therefore testimonial. While the court of appeals did not issue a holding on the issue, it did suggest that compelling a person to give up their password likely does violate a person's Fifth Amendment rights.

The defendant in Diamond has asked the Minnesota Supreme Court to hear the case and determine whether the district court violated his rights. Whichever way the supreme court holds, it will have an impact on a number of Minnesota criminal cases. Either it will grant protection to people who chose to use their fingerprint to lock their phone, or it will make it much easier for the State to search a phone to gather evidence when a fingerprint only protects the phone.

Criminal cases in the digital age have gotten necessarily more complex, and the State can find evidence in a number of ways it could not even a decade ago. If you have been charged with a crime and the State has obtained digital information against you from Facebook, Twitter, Instagram, or your cell phone, it is vital that you contact a lawyer who has the experience and knowledge to fight for you. The attorneys at Olson Law Firm have over 20 years of experience dealing with complex and serious criminal cases all across Minnesota, from the Twin Cities to Rochester, St. Cloud, Duluth, and beyond. If you or someone you know has been charged with a crime, contact Olson Law Firm and make your first call your best call.